Centre for Public Policy Research (CPPR) is a think tank dedicated to intensive research on economic, social, and political issues.

Tuesday, December 11, 2012

JUDICIAL ACTIVISM IN INDIA- An Overview

By Arjun.M, Administrative Assistant, Centre for Public Policy Research

Judicial activism can
be described when the judiciary steps in to the shoes of the executive or the
legislature and embarks on the works and privileges of the other two organs
rather than interpretation of law. This topic has assumed immense significance because
today everything from river pollution to the selection of the cricket team and
even the disposal of waste has become the purview of Judicial Activism. The Supreme
Court of India in a recent judgment on May 5, 2010 in Selvi v. Karnataka
considered the constitutionality of the investigative Narco analysis technique holding it
permissible only when the subject consents to its use. The decision taken by
the Supreme Court of India about the 9th Schedule of the constitution
deserves great attention. It was an
example of excessive judicial Activism. In this case, one of the most
controversial judgments of the Supreme Court was that the ninth schedule of the
Constitution was open to judicial Review.
The common citizens have discovered great relief in Judicial Activism because of the inefficient administration and
nonperforming of the other organs of Government and the wide spread corruption
and criminality in the political sphere.
In many cases the courts acted in the right direction but in certain
instances it made upset the constitutional system of separation of powers. Today
judicial activism has touched almost each and every aspect of life ranges from
human rights issues to maintenance of public roads!

Presence
of an independent and impartial judiciary is an essential pre requisite for
maintaining the essence of Democracy. In India the constitution was made the
supreme law of land. The Executive, the Legislature and the judiciary are its
creations. The Legislature makes laws, executive executes the laws and the
judiciary interprets the laws. The courts were made custodians of the constitution.
The judiciary in India commands considerable respect from the people. Judiciary
used to look into the constitutional validity of a legislative measure or
executive action and then declare it null and void if it is against the
provisions of the constitution. This is known as the power of Judicial Review.
When judiciary, under the guise of interpreting the law goes a step beyond and
ends up giving the country new binding law which is usually different from the
existing one then it constitutes Judicial Activism. The lack of concern by the
Legislature for some pressing problems of the people and the near disappearance
of responsible and responsive governance by the executive have compelled the
courts to enforce the rights of citizens through novel and innovative
strategies to meet the needs of the times. Whether it is environmental
pollution, human right issues the court is upholding the constitutional rights.
According to Anil Divan the famous lawyer, the great contribution of Judicial
Activism in India has been to provide a safety valve and hope that justice is
not beyond reach. It has flourished in India and has acquired enormous
legitimacy with the Indian Public.

Brief History

In the initial years of 1950-67, the Supreme Court
adopted the attitude of judicial restraint in which the court gave a strict and
literal interpretation of the constitution. The nature and scope of judicial
review was first examined by the Supreme Court
in A.K. Gopalan case where it
accepted the principle of judicial subordination to legislative wisdom. But on
the whole it limited itself and exercised judicial restraint. The second phase unfolded with the Golaknath
case which resulted in on open conflict between the judiciary and legislature.
The parliament asserted its supremacy and the Supreme Court asserted its power
of Judicial Review, which resulted in a series of constitutional amendments in
which the parliament tried to limit the power of Judicial review. In the
Emergency of 1975-77, the judiciary was made subservient to the legislature and
executive. In Golaknath case, the Supreme Court gave an unprecedented judgment,
which was clearly a case of Judicial Activism. The reason of imposing emergency
was the decision of Allahabad High Court setting aside the election of Prime
Minister Indira Gandhi to the Lok Sabha. The 42nd constitutional
Amendment Act was also passed which put new limitations on the judiciary. After
the emergency the 44th constitutional Act was passed which restored
the judiciary’s position as it had existed before the emergency. In Minerva
mills case the Supreme Court declared judicial review as part of the basic
structure. Since 1980’s we saw the emergence of Judicial Activism as a powerful
tool in Indian Polity. Thus now we find that the Supreme Court is no longer
exercising judicial restraint. But in fact, it has taken up Judicial Activism
so much. A court giving new meaning to a provision so as to suit the changing
social or economic conditions or expanding the horizons of the right of the individual
is said to be an activist court. Thus has given birth to Judicial Activism. In
the words of Justice J. S. Varma “The role of the Judiciary in interpreting
existing laws according to the needs of the times and filling in the gaps
appears to be the true meaning of Judicial Activism

Recent
trends in Judicial activism

It is
generally understood that when the executive and Legislature are apathetic and
fail to discharge their obligations it becomes the responsibility of the
judiciary to adopt this activist approach. In the recent years the courts have
adopted a pro active role to make up for the inefficiencies of the Executive.
Thus the courts have passed several judgments in various areas of life. Famous Author Subhash Kashyap says, “What has
come to be called hyper activism of the judiciary draws its strength, Relevance
and legitimacy from the inactivity, incompetence, disregard of law and
constitution, criminal negligence, corruption, greed for power and money, utter
indiscipline and lack of character and integrity among the leaders, ministers
and administrators. As a result of this a vacuum was created in which the
governmental machinery seemed to be totally helpless with the corruption in
legislative and executive fields. The vacuum was filled in by the judiciary”. Judicial
Activism has touched almost every aspect of life. Be it the case of bonded labor,
illegal detentions, torture and maltreatment of women, the implementation of
various provisions of the constitution, environmental problems, health, sports
etc the courts took cognizance of each case and laid down various judgments to
protect the basic human rights of each and every member of society. Judicial
Activism has been criticized by politicians and some constitutional experts
while it has been warmly welcomed generally by lawyers and the public. It is
important to note that judicial Activism has so many merits but it has certain
demerits. Supreme Court by evolving the doctrine of basic structure of the
constitution limited the power of the parliament to amend the constitution. It
was an innovation which widened the court’s power of Judicial Activism to an
unlimited extent. The emergency of 1975 and lifting it in 1977 constituted
defining moments for judicial Activism in India. Judicial Activism earned a
human face in India by liberalizing access to justice and giving relief to
disadvantaged groups and the have-nots under the leadership of Justice
V.R.Krishna Iyer and Justice P.N. Bhagwati. .
The court’s increased activism has been good and contributed a lot for
India’s democracy. The expensive,
technical justice now becomes inexpensive and non technical through the growth
of Public Interest Litigations. The important question today is not whether the
Supreme Court could activate its judicial role, but to what extent the concepts
of Judicial Activism and creativity are exercised.

Conclusion

The
major criticism of Judicial Activism is that it is unconstitutional as the
authority of legislative and executive is usurped by the judiciary which is not
elected by the people. The judiciary has
encroached upon the jurisdictions of the executive and legislature and other
independent and autonomous bodies. Through judicial Activism the Judiciary sometimes
enters an area where it has no expertise and competence. In some instances Public interest litigations
may be misused for populism by individuals and groups. Judicial Activism may upset
the constitutional system of separation of powers along with checks and
balances. It cannot be denied that the
opinion of a single Judge is essentially a subjective opinion. It cannot be as objective as a decision made
around 500 parliamentarians. What is necessary is that each
organ of government should discharge its duty duly
and according to the constitution an when this happens the
courts will also find
no reason to interfere in
the activities of
other departments of government.

It
is very important to note that it must not lead the government by judiciary. Frequent
confrontation between the Legislature, Executive and the judiciary will also
damage our well established democratic system of governance. Members of both
the institution have sworn to uphold the constitution, which alone is supreme.
Both sides will maintain and respect the line of demarcation of power under the
constitution and will not allow a conflict to develop between them.

2 comments:

Thank you for the insights into Judicial Activism. There is however a part where I would like to have some clarity. While on the topic of Activism, there naturally arises another term, that of judicial overreach. Don't you think that is a far greater risk to the Constitution's separation of powers? My interpretation of judicial overreach is where the judiciary dictates the other two arms on how to go about its business. The 2G verdict being a case in point.